Whitaker v. McEwen

The opinion of the court was delivered by: David O. Carter United States District Judge

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Magistrate Judge's Report and Recommendation (the "R&R"), and Petitioner's Objections (the "Objections"). After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings and conclusions of the Magistrate Judge.

In the Report, the Magistrate Judge concluded that Petitioner was not entitled to statutory tolling because he had failed to provide any information about the dates on which he filed his state habeas petitions, despite specific instructions to do so. (See R&R at 7). In his Objections, Petitioner attached a Minute Order from the Los Angeles County Superior Court demonstrating that he filed his first state habeas petition on September 25, 2007. (See Objections, Exh. 1A at 1). However, Petitioner's state habeas petition does not qualify for statutory tolling because it was filed after the AEDPA limitations period had already expired on November 15, 1998. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that Section 2244(d) does not permit the re-initiation of the AEDPA limitations period that has ended before the state petition was filed); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (concluding that delay in filing state habeas petition until after the AEDPA limitations period had expired "resulted in an absolute time bar to refiling after [petitioner's] state claims were exhausted").

Accordingly, IT IS ORDERED THAT:

1. The Petition is DENIED and Judgment shall be entered dismissing this action with prejudice.

2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Petitioner at his current address of record.

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